EX-10.1
3
construction_contract.htm
CONSTRUCTION SERVICES WITH GENERAL CONDITIONS AGREEMENT BETWEEN OWNER AND CONTRACTOR
CONSTRUCTION
SERVICES
WITH
GENERAL CONDITIONS
AGREEMENT
BETWEEN
OWNER
AND
CONTRACTOR
This
Document has important legal and insurance consequences; consultation with
an
attorney and insurance consultants and carriers is encouraged with respect
to
its completion or modification.
AGREEMENT
Made
this 5th
day of
April
in
the
year of Two
Thousand and Seven.
BETWEEN:
TULSAT, 0000 X. Xxxxxxx Xxxxxx. Broken Arrow, Oklahoma 74012, the Owner
and
B.
R. Xxxxxx, Inc. 0000 X. Xxxxxxxxx Xxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, the
Contractor.
For
services in connection with Construction of the following described Project:
Construct
a 62,500 Sq. Ft. Warehouse approximately 241 LF south of the existing warehouse
on your property in Broken Arrow, Oklahoma.
The
Owner and the Contractor agree as set forth below:
INDEX
ARTICLE
PAGE
1 The
Construction Team and Extent of Agreement 2
2 Contractor’s
Responsibilities
2
3 Owner’s
Responsibilities
4
4 Subcontracts
4
5 Contract
Time
Schedule
5
6 Guaranteed
Maximum Price 5
7 Contractor’s
Fee
6
8 Cost
of the Project
6
9 Changes
in the Project
8
10 Discounts
9
11 Payments
to the Contractor 9
12 Insurance
Indemnity and Waiver of Subrogation 10
13 Termination
of the Agreement and Owner’s Right to 13
Perform
Contractor’s Obligations
14 Assignment
and governing Law 13
15 Miscellaneous
Provision 14
16 Arbitration 14
ARTICLE
1
The
Construction Team and Extent of Agreement
THE
CONTRACTOR accepts the relationship of trust and confidence established between
him and the Owner by this Agreement. Contractor agrees to furnish the
construction services set forth herein and agrees to furnish efficient business
administration and superintendence, and to use his best efforts to complete
the
Project in the best and soundest way and in the most expeditious and economical
manner consistent with the interests of the Owner.
1.1 The
Construction Team: The
Contractor and the Owner, called the “Construction Team” shall work from the
beginning of the Project through construction completion.
1.2 Extent
of Agreement: This
Agreement represents the entire agreement between the Owner and the Contractor
and supersedes all prior negotiations, representations or agreements. This
Agreement shall not be superseded by any provisions of the documents for
construction and may be amended only by written instrument signed by both Owner
and Contractor.
1.3 Definitions:
The
Project is the total construction of the Building, constructed per the Drawings
and Specifications of which the Work is a part. The Work comprises the completed
construction required by the Drawings and Specifications. The term day shall
mean calendar day unless otherwise specifically designated.
ARTICLE
2
Contractor’s
Responsibilities
2.1 Contractor’s
Services
2.1.1 The
Contractor shall be responsible for furnishing the construction of the Project.
The Owner and Contractor shall develop a construction phase schedule and the
Owner shall be responsible for prompt decisions and approvals so as to maintain
the approved schedule.
2.1.2 The
Contractor will secure permits necessary for the construction of the
Project.
2.2
Responsibilities With Respect to Construction
2.2.1 The
Contractor will provide all construction supervision, inspection, labor,
materials, tools, construction equipment and subcontracted items necessary
for
the execution and completion of the Project.
2.2.2 The
Contractor will pay all sales, use, gross receipts and similar taxes related
to
the Work provided by the Contractor which have been legally enacted at the
time
of execution of this Agreement and for which the Contractor is
liable.
2.2.3 The
Contractor will prepare and submit for the Owner’s approval an estimated
progress schedule for the Project. This schedule shall indicate the dates for
the starting and completion of the various stages of the design and
construction. It shall be revised as required by the conditions of the Work
and
those conditions and events which are beyond the Contractor’s
control.
2.2.4 The
Contractor shall at all times keep the premises free from the accumulation
of
waste materials or rubbish caused by his operations. At the completion of the
Work, he shall remove all of his waste material and rubbish from and around
the
Project as well as all his tools, construction equipment, machinery and surplus
materials.
| 2.2.5 |
The
Contractor will give all notices and comply with all laws and ordinances
legally enacted at the date of execution of the Agreement, which govern
the proper execution of the Work.
|
2
2.2.6 The
Contractor shall take necessary precautions for the safety of his employees
on
the Work, and shall comply with all applicable provisions of federal, state
and
municipal safety laws to prevent accidents or injury to person on, about or
adjacent to the Project site. He shall erect and properly maintain, at all
times, as required by the conditions and progress of Work, necessary safeguards
for the protection of workmen and the public. It is understood and agreed,
however, that the Contractor shall have no responsibility for the elimination
or
abatement of safety hazards created or otherwise resulting from Work at the
job
site carried on by other persons or firms directly employed by the Owner as
separate contractors or by the Owner’s tenants, and the Owner agrees to cause
any such separate contractors and tenants to abide by and fully adhere to all
applicable provisions of federal, state and municipal safety laws and
regulations and to comply with all reasonable requests and directions of the
Contractor for the elimination or abatement of any such safety hazards at the
job site.
2.2.7 The
Contractor shall keep such full and detailed accounts as may be necessary for
proper financial management under this Agreement. The system shall be
satisfactory to the Owner, who shall be afforded access to all the Contractor’s
records, books, correspondence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to this Agreement. The Contractor shall
preserve all such records for a period of three years after the final payment
or
longer where required by law.
2.3
Royalties and Patents
2.3.1 The
Contractor shall pay all royalties and license fees for materials, methods
and
systems incorporated in the work. He shall defend all suits or claims for
infringement of any patent rights and shall save the Owner harmless from loss
on
account thereof except when a particular design, process or product is specified
by the Owner. In such case the Contractor shall be responsible for such loss
only if he has reason to believe that the design, process or product so
specified is an infringement of a patent, and fails to give such information
promptly to the Owner.
2.4
Warranties and Completion
2.4.1 The
Contractor warrants to the Owner that all materials and equipment furnished
under this Agreement will be new, unless otherwise specified, and that all
Work
will be of good quality, free from improper workmanship and defective materials
and in conformance with the Drawings and Specifications. The Contractor agrees
to correct all Work performed by him under this Agreement which proves to be
defective in material and workmanship within a period of one year from the
Date
of Substantial Completion as defined in Paragraph 5.2, or for such longer
periods of time as may be set forth with respect to specific warranties
contained in the Specifications.
2.4.2 The
Contractor will secure required certificates of inspection, testing or approval
and deliver them to the Owner.
2.4.3 The
Contractor will collect all written warranties and equipment manuals and deliver
them to the Owner.
2.4.4 The
Contractor with the assistance of the Owner’s maintenance personnel, will direct
the checkout of utilities and operations of systems and equipment for readiness,
and will assist in their initial start-up and testing.
2.5
Additional Services
2.5.1 The
Contractor will provide the following additional services upon the request
of
the Owner. A written agreement between the Owner and Contractor shall define
the
extent of such additional services and the amount and manner in which the
Contractor will be compensated for such additional services.
2.5.2 Services
related to investigation, appraisals or evaluations of existing conditions,
facilities or equipment, or verification of the accuracy of existing drawings
or
other Owner furnished information.
2.5.3 Services
related to Owner furnished equipment, furniture and furnishings which are not
a
part of this Agreement.
2.5.4 Services
for tenant or rental spaces not a part of this Agreement.
| 2.5.5 |
Obtaining
and training maintenance personnel or negotiating maintenance service
contract.
|
3.
ARTICLE
3
Owner’s
Responsibility
3.1 The
Owner shall provide full information regarding his requirements for the
Project.
3.2 The
Owner shall designate a representative who shall be fully acquainted with the
Project, and has authority to approve changes in the scope of the Project,
render decisions promptly, and furnish information expeditiously and in time
to
meet the dates set forth in Subparagraph 2.2.3.
3.3 the
Owner shall furnish for the site of the Project all necessary surveys describing
the physical characteristics, soils reports and subsurface investigations,
legal
limitations, utility locations, and a legal description.
3.4 The
Owner shall secure and pay for necessary approvals, easements, assessments
and
charges required for the construction, use, or occupancy of permanent structures
or for permanent changes in existing facilities.
3.5 The
Owner shall furnish such legal services as may be necessary for providing the
items set forth in Paragraph 3.4, and such auditing services as he may
require.
3.6 If
the
Owner becomes aware of any fault or defect in the Project or non-conformance
with the Drawings or Specifications, he shall give prompt written notice thereof
to the Contractor.
3.7 The
Owner shall bear the costs of any bonds that may be required.
3.8 The
services and information required by the above paragraphs shall be furnished
with reasonable promptness at the Owner’s expense and the Contractor shall be
entitled to rely upon the accuracy and the completeness thereof.
3.9 The
Owner shall furnish reasonable evidence satisfactory to the Contractor, prior
to
commencing Work and at such future times as may be required, that sufficient
funds are available and committed for the entire cost of the Project. Unless
such reasonable evidence is furnished, the Contractor is not required to
commence or continue any Work, or may, if such evidence is not presented within
a reasonable time, stop Work upon 15 days notice to the Owner. The failure
of
the Contractor to insist upon the providing of this evidence at any one time
shall not be a waiver of the Owner’s obligation to make payments pursuant to
this Agreement nor shall it be a waiver of the Contractor’s right to request or
insist that such evidence be provided at a later date.
3.10 The
Owner shall have no contractual obligation to the Contractor’s Subcontractors
and shall communicate with such Subcontractors only through the Contractor.
ARTICLE
4
Subcontracts
4.1 All
portions of the Work that the Contractor does not perform with his own forces
shall be performed under subcontract.
4.2 A
Subcontractor is a person or entity who has a direct contract with the
Contractor to perform any Work in connection with the Project. The term
Subcontractor does not include any separate contractor employed by the Owner
or
the separate contractors’ subcontractors.
4.3 No
contractual relationship shall exist between the Owner and any Subcontractor.
The Contractor shall be responsible for the management of the Subcontractors
in
the performance of their work.
4.
ARTICLE
5
Contract
Time Schedule
5.1 The
Work
to be performed under this Agreement shall be commenced on or about One
Week from receipt of Building Permit and Owners
Authorization to
proceed with the work
and
shall be substantially completed on or about 180
Calendar Days from the start date.
5.2 The
Date
of Substantial Completion of the Project or a designated portion thereof is
the
date when construction is sufficiently complete in accordance with the Drawings
and Specifications so the Owner can occupy or utilize the Project or designated
portion thereof for the use for which it is intended. Warranties called for
by
this Agreement or by the Drawings and Specifications shall commence on the
Date
of Substantial Completion of the Project or designated portion thereof. This
date shall be established by a Certificate of Substantial Completion signed
by
the Owner and Contractor and shall state their respective responsibilities
for
security, maintenance, heat, utilities, damage to the Work and insurance. This
Certificate shall also list the items to be completed or corrected and fix
the
time for their completion and correction.
5.3 If
the
Contractor is delayed at any time in the progress of the Project by any act
or
neglect of the Owner or by any separate contractor employed by the Owner, or
by
changes ordered in the Project, or by labor disputes, fire, unusual delay in
transportation, adverse weather conditions not reasonably anticipatable,
unavoidable casualties, or any cause beyond the Contractor’s control, or a delay
authorized by the Owner pending arbitration, then the Date of Substantial
Completion shall be extended by Change Order for the period of time caused
by
such delay.
ARTICLE
6
Guaranteed
Maximum Price
6.1 The
Contractor guarantees that the maximum price to the Owner for the cost of the
Project as set forth in Article 8, and the Contractor’s Fee as set forth in
Article 7, will not exceed $1,636,965.00,
which
sum shall be called the Guaranteed
Maximum Price.
6.2 The
Guaranteed Maximum Price is based upon laws, codes, and regulations in existence
at the date of its establishment and upon the Drawings, and Specifications
as
set forth below:
A.
B. R.
Xxxxxx, Inc. drawings No. 07-15, sheets Cover Sheet, SP1-SP2, A1-A3, S1-S2,
P1,M1, and E1-E2 all dated 3-9-07, which are marked Exhibit A.
B.
NRS
Inc. Civil drawing sheets C1 - C5 dated 3-9-07, which are marked Exhibit
A.
C.
Outline Specifications pages 1-4 dated 4-5-07 which are marked Exhibit
B.
6.3 The
Guaranteed Maximum Price will be modified for delays caused by the Owner and
for
Changes in the Project, all pursuant to Article 9.
6.4 Allowances
included in the Guaranteed Maximum Price are as set forth below:
6.5 Whenever
the cost is more than or less than the Allowance, The Guaranteed Maximum Price
shall be adjusted by Change Order.
5
ARTICLE
7
Contractor’s
Fee
7.1 In
consideration of the performance of the Agreement, the Owner agrees to pay
to
the Contractor in current funds as compensation for his services a Fee as
follows:
Ten
percent (10%) of the total cost of the project as defined in Article
8.
7.2
Adjustment in Fee shall be made as follows:
7.2.1 For
Changes in the Project as provided in Article 9, the Contractor’s Fee shall be
adjusted as follows:
Contractor’s
cost plus ten percent (10%).
7.2.2 For
delays in the Project, not the responsibility of the Contractor, there will
be
an equitable adjustment in the fee to compensate the Contractor for his
increased expenses.
7.2.3 In
the
event the Cost of the Project plus the Contractor’s Fee shall be less than the
Guaranteed Maximum Price as adjusted by Change Orders, the resulting savings
will be shared by the Owner and the Contractor as follows:
A.
Owner receives seventy five percent (75%) and Contractor receives twenty five
(25%).
| B. |
Contractor’s
share of savings shall not “exceed” two percent (2%) of the project’s
final total cost.
|
7.2.4 The
Contractor shall be paid an additional fee in the same proportion as set forth
in 7.2.1 if the Contractor is placed in charge of managing the replacement
of
insured or uninsured loss.
7.3 The
Contractor shall be paid monthly that part of his Fee proportionate to the
percentage of Work completed, the balance, if any, to be paid at the time of
final payment.
7.4
Included in the Contractor’s Fee are the following:
7.4.1 Salaries
or other compensation of the Contractor’s employees at the principal office and
branch offices, except employees listed in Subparagraph 8.2.3.
7.4.2 General
operating expenses of the Contractor’s principal and branch offices other than
the field office.
7.4.3 Any
part
of the Contractor’s capital expenses, including interest on the Contractor’s
capital employed for the Project.
7.4.4 Overhead
or general expenses of any kind, except as may be expressly included in Article
8.
7.4.5 Costs
in
excess of the Guaranteed Maximum Price.
ARTICLE
8
Cost
of the Project
8.1 The
term
Cost of the Project shall mean costs necessarily incurred in the construction
of
the Project and shall include the items set forth below in this Article. The
Owner agrees to pay the Contractor for the Cost of the Project as defined in
this Article. Such payment shall be in addition to the Contractor’s Fee
stipulated in Article 7.
8.2
Cost Items
8.2.1 All
architectural, engineering and consulting fees and expenses incurred during
constructing of the Project.
8.2.2 Wages
paid for labor in the direct employ of the Contractor in the performance of
the
Work under applicable collective bargaining agreements, or under a salary or
wage schedule agreed upon by the Owner and the Contractor, and including such
welfare or other benefits, if any, as may be payable with respect
thereto.
6
8.2.3 Salaries
of Contractor’s employees when stationed at the field office, in whatever
capacity employed, employees engaged on the road expediting the production
or
transportation of material and equipment and employees from the main or branch
office performing the functions listed below:
Employees
from main office shall not be a cost to the project.
8.2.4 Cost
of
all employee benefits and taxes for such items as unemployment compensation
and
social security, insofar as such cost is based on wages, salaries, or other
remuneration paid to employees of the Contractor and included in the Cost of
the
Project under Subparagraphs 8.2.1, 8.2.2 and 8.2.3.
8.2.5 Reasonable
transportation, traveling and hotel and moving expenses of the Contractor or
of
his offices or employees incurred in discharge of duties connected with the
Project.
8.2.6 Cost
of
all materials, supplies and equipment incorporated in the Project, including
costs of transportation and storage thereof.
8.2.7 Payments
made by the Contractor to Subcontractors for Work performed pursuant to contract
under this Agreement.
8.2.8 Cost,
including transportation and maintenance, of all materials, supplies, equipment,
temporary facilities and hand tools not owned by the workmen, which are employed
or consumed in the performance of the Work, and cost less salvage value on
such
items used, but not consumed, which remain the property of the
Contractor.
8.2.9 Rental
charges of all necessary machinery and equipment, exclusive of hand tools,
used
at the site of the Work, whether rented from the Contractor or others, including
installations, repairs and replacements, dismantling, removal, costs of
lubrication, transportation and delivery costs hereof, at rental charges
consistent with those prevailing in the area.
8.2.10 Cost
of
the premiums for all insurance which the Contractor is required to procure
by
this Agreement or is deemed necessary by the Contractor.
8.2.11 Sales,
use, gross receipts or similar taxes related to the Project, imposed by any
governmental authority, and for which the Contractor is liable.
8.2.12 Permit
fees, licenses, tests, royalties, damages for infringement of patents and costs
of defending suits therefor for which the Contractor is responsible under
Subparagraph 2.3.1 and deposits lost for causes other than the Contractor’s
negligence.
8.2.13 Losses,
expenses or damages to the extent not compensated by insurance or otherwise
(including settlement made with the written approval of the Owner), and the
cost
of corrective work.
8.2.14 Minor
expenses such as telegrams, long-distance telephone calls, telephone service
at
the site, expressage, and similar xxxxx cash items in connection with the
Project.
8.2.15 Cost
of
removal of all debris.
8.2.16 Costs
incurred due to an emergency affecting the safety of persons and
property.
8.2.17 Cost
of
data processing services required in the performance of the services outlined
in
Article 2.
8.2.18 Legal
costs reasonably resulting from the Contractors prosecution of the Work on
the
Project for the Owner.
8.2.19 All
costs directly incurred in the performance of the Project and not included
in
the Contractor’s Fee as set forth in Paragraph 7.4.
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ARTICLE
9
Changes
in the Project
9.1 The
Owner, without invalidating this Agreement, may order Changes in the Project
within the general scope of this Agreement consisting of additions, deletions
or
other revisions, the Guaranteed Maximum Price, if established, the Contractor’s
Fee, and the Contract Time Schedule being adjusted accordingly. All such Changes
in the Project shall be authorized by Change Order.
9.1.1 A
Change
Order is a written order to the Contractor signed by the Owner or his authorized
agent and issued after the execution of this Agreement, authorizing a Change
in
the Project and/or an adjustment in the Guaranteed Maximum Price, the
Contractor’s Fee or the Contract Time Schedule. Each adjustment in the
Guaranteed Maximum Price resulting from a Change Order shall clearly separate
the amount attributable to the Cost of the Project and the Contractor’s
Fee.
9.1.2 The
increase or decrease in the Guaranteed Maximum Price resulting from a Change
in
the Project shall be determined in one or more of the following
ways:
9.1.2.1 by
mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation, or
9.1.2.2 by
unit
prices stated in this Agreement or subsequently agreed upon; or
9.1.2.3 by
cost
to be determined as defined in Article 8 and a mutual acceptable fixed or
percentage fee, or
9.1.2.4 by
the
method provided in Subparagraph 9.1.3.
9.1.3 If
none
of the methods set forth in Clauses 9.1.2.1 through 9.1.2.3 is agreed upon,
the
Contractor, provided he receives a written order signed by the Owner, shall
promptly proceed with the Work involved. The cost of such Work shall then be
determined on the basis of the reasonable expenditures and savings of those
performing the Work attributed to the change, including, in the case of an
increase in the Guaranteed Maximum Price, a reasonable increase in the
Contractor’s Fee. In such case, and also under Clauses 9.1.2.3 and 9.1.2.4
above, the Contractor shall keep and present, in such form as the Owner may
prescribe, an itemized accounting together with appropriate supporting data
of
the increase in the Cost of the Project as outlined in Article 8. The amount
of
decrease in the Guaranteed Maximum Price to be allowed by the Contractor to
the
Owner for any deletion or change which results in a net decrease in cost will
be
the amount of the actual net decrease. When both additions and credits are
involved in any one change, the increase in Fee shall be figured on the basis
of
net increase, if any.
9.1.4 If
unit
prices are stated in this Agreement or subsequently agreed upon, and if the
quantities originally contemplated are so changed in a proposed Change Order
or
as a result of several Change Orders that application of the agreed unit prices
to the quantities of Work proposed will cause substantial inequity to the Owner
or the Contractor, the applicable unit prices and the Guaranteed Maximum Price
shall be equitably adjusted.
9.1.5 Should
concealed conditions encountered in the performance of the Work below the
surface of the ground or should concealed or unknown conditions in an existing
structure be at variance with the conditions indicated by the Drawings,
Specifications, or Owner-furnished information or should unknown physical
conditions below the surface of the ground or should concealed or unknown
conditions in an existing structure of an unusual nature, differing materially
from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Agreement, be encountered, the Guaranteed
Maximum Price and the Contract Time Schedule shall be equitably adjusted by
Change Order upon claim by either party made within a reasonable time after
the
first observance of the conditions.
9.2
Claims for Additional Cost or Time
9.2.1 If
the
Contractor wishes to make a claim for an increase in the Guaranteed Maximum
Price, or increase in his Fee or an extension in the Contract Time Schedule,
he
shall give the Owner written notice thereof within a reasonable time after
the
occurrence of the event giving rise to such claim. This notice shall be given
by
the Contractor before proceeding to execute the Work, except in an emergency
endangering life or property in which case the Contractor shall act, at his
discretion, to prevent threatened damage, injury or loss. Claims arising from
delay shall be made within a reasonable time
8
after
the delay. Increases based upon design and estimating costs with respect to
possible changes requested by the Owner shall be made within a reasonable time
after the decision is made not to proceed with the change. No such claim shall
be valid unless so made. If the Owner and the Contractor cannot agree on the
amount of the adjustment in the Guaranteed Maximum Price, the Contractor’s Fee
or Contract Time Schedule, it shall be determined pursuant to the provisions
of
Article 16. Any change in the Guaranteed Maximum Price, the Contractor’s Fee or
Contract Time Schedule resulting from such claim shall be authorized by Change
Order.
9.3
Minor Changes in the Project
9.3.1 The
Owner will have authority to order minor Changes in the Work not involving
an
adjustment in the Guaranteed Maximum Price or an extension of the Contract
Time
Schedule and not inconsistent with the intent of the Drawings and
Specifications. Such Changes may be effected by written order and shall be
binding on the Owner and Contractor.
9.4
Emergencies
9.4.1 In
any
emergency affecting the safety of persons or property, the Contractor shall
act,
at his discretion, to prevent threatened damage, injury or loss. Any increase
in
the Guaranteed Maximum Price or extension of time claimed by the Contractor
on
account of emergency work shall be determined as provided in this
Article.
ARTICLE
10
Discounts
All
discounts for prompt payment shall accrue to the Owner to the extent the Cost
of
the Project is paid directly by the Owner or from a fund made available by
the
Owner to the Contractor for such payments. To the extent the Cost of the Project
is paid with funds of the Contractor, all cash discounts shall accrue to the
Contractor. All trade discounts, rebates and refunds, and all returns from
sale
of surplus materials and equipment, shall be credited to the Cost of the
Project.
ARTICLE
11
Payments
to the Contractor
11.1 Payments
shall be made by the Owner to the Contractor according to the following
procedure:
11.1.1 On
or
before the first
(1st)
day of
each month after Work has commenced, the Contractor shall submit to the Owner
an
Application for Payment in such detail as may be required by the Owner based
on
the Work completed and materials stored on the site and/or at locations approved
by the Owner along with a proportionate amount of the Contractor’s Fee for the
period ending on the first
(1st)
day of
the month.
11.1.2 Within
ten (10) days after his receipt of each monthly Application for Payment, the
Owner shall pay directly to the Contractor the appropriate amounts for which
Application for Payment is made therein. This payment request shall deduct
the
aggregate of amounts previously paid by the Owner.
11.1.3 If
the
Owner should fail to pay the Contractor at the time the payment of any amount
becomes due, then the Contractor may, at any time thereafter, upon serving
written notice that he will stop Work within five (5) days after receipt of
the
notice by the Owner, and after such five (5) day period, stop the Project until
payment of the amount owing has been received. Written notice shall be deemed
to
have been duly served if sent by certified mail to the last business address
known to him who gives the notice.
11.1.4 Payments
due but unpaid shall bear interest at the rate of Security Bank of Tulsa prime
plus two percent (2%).
11.2 The
Contractor warrants and guarantees that title to all Work, materials and
equipment covered by an Application for Payment whether incorporated in the
Project or not, will pass to the Owner upon receipt of such payment by the
Contractor free and clear of all liens, claims, security interests or
encumbrances hereinafter referred to as Liens.
11.3 No
Progress Payment nor any partial or entire use or occupancy of the Project
by
the Owner shall constitute an acceptance of any Work not in accordance with
the
Drawings and Specifications.
9
11.4 Final
payment constituting the unpaid balance of the Cost of the Project and the
Contractor’s Fee shall be due and payable when the Project is delivered to the
Owner, ready for beneficial occupancy, or when the Owner occupies the Project,
whichever event first occurs, provided that the Project be then substantially
completed and this Agreement substantially performed. If there should remain
minor items to be completed, the Contractor and the Owner shall list such items
and the Contractor shall deliver, in writing, his guarantee to complete said
items within a reasonable time thereafter. The Owner may retain a sum equal
to
150% of the estimated cost of completing any unfinished items, provided that
said unfinished items are listed separately and the estimated cost of completing
any unfinished items is likewise listed separately. Thereafter, the Owner shall
pay to the Contractor, monthly, the amount retained for incomplete items as
each
of said items is completed.
11.5 Before
issuance of Final Payment, the Owner may request satisfactory evidence that
all
payrolls, materials bills and other indebtedness connected with the Project
have
been paid or otherwise satisfied.
11.6 The
making of Final Payment shall constitute a waiver of all claims by the Owner
except those arising from:
11.6.1 Unsettled
Liens.
11.6.2 Improper
workmanship or defective materials appearing within one year after the Date
of
Substantial Completion.
11.6.3 Failure
of the Work to comply with the Drawings and Specifications.
11.6.4 Terms
of
any special guarantees required by the Drawings and Specifications.
11.7 The
acceptance of Final Payment shall constitute a waiver of all claims by the
Contractor except those previously made in writing and unsettled.
ARTICLE
12
Insurance,
Indemnity and Waiver of Subrogation
12.1
Indemnity
12.1.1 The
Contractor agrees to indemnify and hold the Owner harmless from all claims
for
bodily injury and property damage (other than the Work itself and other property
insured under Paragraph 12.4) that may arise from the Contractor’s operations
under this Agreement.
12.1.2 The
Owner shall cause any other contractor who may have a contract with the Owner
to
perform work in the areas where Work will be performed under this Agreement,
to
agree to indemnify the Owner and the Contractor and hold them harmless from
all
claims for bodily injury and property damage (other than property insured under
Paragraph 12.4) that may arise from that contractor’s operations. Such
provisions shall be in a form satisfactory to the Contractor.
12.2
Contractor’s Liability Insurance
12.2.1 The
Contractor shall purchase and maintain such insurance as will protect him from
the claims set forth below which may arise out of or result from the
Contractor’s operations under this Agreement whether such operations be by
himself or by any Subcontractor or by anyone directly or indirectly employed
by
any of them, or by anyone for whose acts any of them may be liable:
12.2.1.1 Claims
under workers’ compensation, disability benefit and other similar employee
benefit acts which are applicable to the Work to be performed.
12.2.1.2 Claims
for damages because of bodily injury, occupational sickness or disease, or
death
of his employees under any applicable employer’s liability law.
12.2.1.3 Claims
for damages because of bodily injury, or death of any person other than his
employees.
10
12.2.1.4 Claims
for damages insured by usual personal injury liability coverage which are
sustained (1) by any person as a result of an offense directly or indirectly
related to the employment of such person by the Contractor or (2) by any other
person.
12.2.1.5 Claims
for damages, other than to the work itself, because of injury to or destruction
of tangible property, including loss of use therefrom.
12.2.1.6 Claims
for damages because of bodily injury or death of any person or property damaged
arising out of the ownership, maintenance or use of any motor
vehicle.
12.2.2 The
Comprehensive General Liability Insurance shall include premises-operations
(including explosion, collapse and underground coverage) elevators, independent
contractors, completed operations, and blanket contractual liability on all
written contracts, all including broad form property damage
coverage.
12.2.3 The
Contractor’s Comprehensive General and Automobile Liability Insurance, as
required by Subparagraphs 12.2.1 and 12.2.2 shall be written for not less than
limits of liability as follows:
a. Comprehensive
General Liability
1. Bodily
Injury
-$
1,000,000 Each Occurrence
(Completed
Operations)
$
2,000,000
Aggregate
2. Property
Damage
-$
1,000,000 Each Occurrence
$
2,000,000 Aggregate
b. Comprehensive
Automobile Liability
1. Bodily
Injury
-$
1,000,000 Each Person
$
1,000,000 Each Occurrence
2. Property
Damage
-$
1,000,000 Each Occurrence
c. Umbrella
Liability Insurance
$
2,000,000 Aggregate
12.2.4 Comprehensive
General Liability Insurance may be arranged under a single policy for the full
limits required or by a combination of underlying policies with the balance
provided by an Excess or Umbrella Liability policy.
12.2.5 The
foregoing policies shall contain a provision that coverage’s afforded under the
policies will not be canceled or not renewed until at least sixty (60) days
prior written notice has been given to the Owner. Certificates of Insurance
showing such coverage’s to be in force shall be filed with the Owner prior to
commencement of the Work.
12.3
Owner’s Liability Insurance
12.3.1 The
Owner shall be responsible for purchasing and maintaining his own liability
insurance and, at his option, may purchase and maintain such insurance as will
protect him against claims which may arise from operations under this
Agreement.
12.4
Insurance to Protect Project
12.4.1 The
Contractor shall purchase and maintain property insurance in a form acceptable
to the Owner upon the entire Project for the full cost of replacement at the
time of any loss. This insurance shall include as named insured the Owner,
the
Contractor, Subcontractors and Subsubcontractors and shall insure against loss
from the perils of Fire, Extended Coverage, and shall include “All Risk”
insurance for physical loss or damage including, without duplication of
coverage, at least theft, vandalism, malicious mischief, transit, or collapse.
The Contractor will increase limits of coverage, if necessary, to reflect
estimated replacement cost.
11
12.4.1.1 If
the
Owner finds it necessary to occupy or use a portion or portions of the Project
prior to Substantial Completion thereof, such occupancy shall not commence
prior
to a time mutually agreed to by the Owner and the Contractor and to which the
insurance company or companies providing the property insurance have consented
by endorsement to the policy or policies. This insurance shall not be canceled
or lapsed on account of such partial occupancy. Consent of the Contractor and
of
the insurance company or companies to such occupancy or use shall not be
unreasonably withheld.
12.4.2 The
Owner shall purchase and maintain such boiler and machinery insurance as may
be
required or necessary. This insurance shall include the interests of the Owner,
the Contractor, Subcontractors and Subsubcontractors in the Work.
12.4.3 The
Owner shall purchase and maintain such insurance as will protect the Owner
and
the Contractor against loss of use of Owner’s property due to those perils
insured pursuant to Subparagraph 12.4.1. Such policy will provide coverage
for
expediting expenses of materials, continuing overhead of the Owner and the
Contractor, necessary labor expense including overtime, loss of income by the
Owner and other determined exposures. Exposures of the Owner and the Contractor
shall be determined by mutual agreement and separate limits of coverage fixed
for each item.
12.4.4 The
Contractor shall file a copy of all policies with the Owner before an exposure
to loss may occur. Copies of any subsequent endorsements will be furnished
to
the Owner. The Owner will be given thirty (30) days notice of cancellation,
non-renewal, or any endorsements restricting or reducing coverage.
12.5
Property Insurance Loss Adjustment
12.5.1 Any
insured loss shall be adjusted with the Owner and the Contractor and made
payable to the Owner and Contractor as trustees for the insured’s, as their
interest may appear, subject to any applicable mortgage clause.
12.5.2 Upon
the
occurrence of an insured loss, monies received will be deposited in a separate
account and the trustees shall make distribution in accordance with the
agreement of the parties in interest, or in the absence of such agreement,
in
accordance with an arbitration awarded pursuant to Article 16. If the trustees
are unable to agree between themselves on the settlement of the loss, such
dispute shall also be submitted to arbitration pursuant to Article
16.
12.6
Waiver of Subrogation
12.6.1 The
Owner and Contractor waive all rights against each other, the Engineer,
Subcontractors and Subsubcontractors for damages caused by perils covered by
insurance provided under Paragraph 12.4, except such rights as they may have
to
the proceeds of such insurance held by the Owner and Contractor as trustees.
The
Contractor shall require similar waivers from all Subcontractors and
Subsubcontractors.
12.6.2 The
Owner and Contractor waive all rights against each other and the Engineer,
Subcontractors and Subsubcontractors for loss or damage to any equipment used
in
connection with the Project which loss is covered by any property insurance.
The
Contractor shall require similar waivers from all Subcontractors and
Subsubcontractors.
12.6.3 The
Owner waives subrogation against the Contractor, Engineer, Subcontractors,
and
Subsubcontractors on all property and consequential loss policies carried by
the
Owner on adjacent properties and under property and consequential loss policies
purchased for the Project after its completion.
12.6.4 If
the
policies of insurance referred to in this Paragraph require an endorsement
to
provide for continued coverage where there is a waiver of subrogation, the
owners of such policies will cause them to be so endorsed.
12
ARTICLE
13
Termination
of the Agreement and Owner’s
Right
to Perform Contractor’s Obligations
13.1
Termination by the Contractor
13.1.1 If
the
Project is stopped for a period of thirty (30) days under an order of any court
or other public authority having jurisdiction, or as a result of an act of
government, such as a declaration of a national emergency making materials
unavailable, through no act or fault of the Contractor or if the Project should
be stopped for a period of thirty (30) days by the Contractor for the Owner’s
failure to make payment thereon, then the Contractor may, upon seven days
written notice to the Owner, terminate this Agreement and recover from the
Owner
payment for all Work executed, the Contractor’s Fee earned to date, and for any
proven loss sustained upon any materials, equipment, tools, construction
equipment and machinery, including reasonable profit and damages.
13.2
Owner’s Right to Perform Contractor’s Obligations and Termination by the Owner
for Cause
13.2.1 If
the
Contractor fails to perform any of his obligations under this Agreement,
including any obligation he assumes to perform Work with his own forces, the
Owner may, after seven days written notice, during which period the Contractor
fails to perform such obligation, make good such deficiencies. The Guaranteed
Maximum Price, if any, shall be reduced by the cost to the Owner of making
good
such deficiencies.
13.2.2 If
the
Contractor is adjudged a bankrupt, or if he makes a general assignment for
the
benefit of his creditors, or if a receiver is appointed on account of his
insolvency, or if he persistently or repeatedly refuses or fails, except in
cases for which extension of time is provided, to supply enough properly skilled
workmen or proper materials, or if he fails to make proper payment to
Subcontractors or for materials or labor, or persistently disregards laws,
ordinances, rules, regulations or orders of any public authority having
jurisdiction, or otherwise is guilty of a substantial violation of a provision
of this Agreement, then the Owner may, without prejudice to any right or remedy
and after giving the Contractor and his surety, if any, seven (7) days written
notice, during which period the Contractor fails to cure the violation,
terminate the employment of the Contractor and take possession of the site
and
of all materials, equipment, tools, construction equipment and machinery thereon
owned by the Contractor and may finish the Work by whatever reasonable method
he
may deem expedient. In such case, the Contractor shall not be entitled to
receive any further payment until the Work is finished nor shall he be relieved
from his obligations assumed under Article 6.
13.3
Termination by Owner Without Cause
13.3.1 If
the
Owner terminates the Agreement other than pursuant to Article 13.2.2, he shall
reimburse the Contractor for any unpaid Cost of the Project due him under
Article 8, plus the unpaid balance of the Contractor’s Fee. If the Contractor’s
Fee is based upon a percentage of the Cost of the Project, the Fee shall be
calculated upon the adjusted Guaranteed Maximum Cost, if any, otherwise to
a
reasonable estimated Cost of the Project when completed. The Owner shall also
pay to the Contractor fair compensation, either by purchase or rental at the
election of the Owner, for any equipment retained. In case of such termination
of this Agreement the Owner shall further assume and become liable for
obligations, commitments and unsettled claims that the Contractor has previously
undertaken or incurred in good faith in connection with said Work. The
Contractor shall, as a condition of receiving the payments referred to in this
Article 13, execute and deliver such papers and take all such steps, including
the legal assignment of his contractual rights, as the Owner may require for
the
purpose of fully vesting in the Owner the rights and benefits of the Contractor
under such obligations or commitments.
ARTICLE
14
Assignment
and Governing Law
14.1 Neither
the Owner nor the Contractor shall assign his interest in this Agreement without
the written consent of the other except as to the assignment of
proceeds.
14.2 This
Agreement shall be governed by the law in effect at the location of this
Project.
13
ARTICLE
15
Miscellaneous
Provisions
ARTICLE
16
Arbitration
16.1 All
claims, disputes and other matters in question arising out of, or relating
to,
this Agreement or the breach thereof, except with respect to the Engineer’s
decision on matters relating to artistic effect, and except for claims which
have been waived by the making or acceptance of Final Payment shall be decided
by arbitration in accordance with the Construction Industry Arbitration Rules
of
the American Arbitration Association then obtaining unless the parties mutually
agree otherwise. This agreement to arbitrate shall be specifically enforceable
under the prevailing arbitration law.
16.2 Notice
of the demand for arbitration shall be filed in writing with the other party
to
this Agreement and with the American Arbitration Association. The demand for
arbitration shall be made within a reasonable time after the claim, dispute
or
other matter in question has arisen, and in no event shall it be made when
institution of legal or equitable proceedings based on such claim, dispute
or
other matter in question would be barred by the applicable statute of
limitations.
16.3 The
award rendered by the arbitrators shall be final and judgment may be entered
upon it in accordance with applicable law in any court having jurisdiction
thereof.
16.4 Unless
otherwise agreed in writing, the Contractor shall carry on the Work and maintain
the Contract Time Schedule during any arbitration proceedings and the Owner
shall continue to make payments in accordance with this Agreement.
16.5 All
claims which are related to or dependent upon each other shall be heard by
the
same arbitrator or arbitrators, even though the parties are not the same, unless
a specific contract prohibits such consolidation.
16.6 These
provisions relating to mandatory arbitration shall not be applicable to a claim
asserted in an action in a state or federal court by a person who is under
no
obligation to arbitrate such claim with either of the parties to this Agreement
insofar as the parties to this Agreement may desire to assert any rights or
indemnity or contribution with respect to the subject matter of such
action.
This
Agreement entered into as of the day and year first written above.
Accepted
this date: May
14, 2007
ATTEST:
/s/:
Xxxx X. Xxxxxxx OWNER:
TULSAT
By:
/s/:
Xxxxxxx X. Xxxxxxx
Print
Name: Xxxxxxx
X. Xxxxxxx
Title:
President
& Chief Executive Officer
Accepted
this date: May
14,2007
ATTEST:
/s/:
Xxxx X. Xxxxxxx CONTRACTOR
:
B. R. XXXXXX, INC.________
By:
/s/:
Xxxx X. Xxxxxx
Print
Name: Xxxx
X. Xxxxxx
Title:
President
14
